Citation Nr: 0425214
Decision Date: 09/14/04 Archive Date: 09/16/04
DOCKET NO. 03-03 428 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for a heart condition.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. Tenner, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1963 to March
1965 and from May 1965 to May 1968.
In August 2000, the veteran claimed entitlement to service
connection for a heart condition. In an April 2001 decision,
the Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia denied service connection for
heart disease. Thereafter, in October 2001, the veteran
submitted additional service medical records, not previously
considered by the RO and pertaining to his first period of
active duty service. Following a review of the newly
received records, in September 2002, the RO again denied
service connection for a heart condition. The veteran filed
a notice of disagreement in October 2002. The RO issued a
statement of the case in January 2003 and received the
veteran's substantive appeal in February 2003.
FINDING OF FACT
The competent evidence of record indicates that a current
heart condition, diagnosed as coronary artery disease is not
likely related to chest pains or symptoms of myocarditis and
pericarditis in service.
CONCLUSION OF LAW
The criteria for service connection for a heart disability
are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307,
3.309 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38
C.F.R § 3.159, amended VA's duties to notify and assist a
claimant in developing information and evidence necessary to
substantiate a claim.
Under 38 U.S.C.A. § 5103, VA must notify the claimant of the
information and evidence not of record that is necessary to
substantiate the claim, which information and evidence that
VA will seek to provide and which information and evidence
the claimant is expected to provide. Furthermore, in
compliance with 38 C.F.R. § 3.159(b), the notification should
include the request that the claimant provide any evidence in
the claimant's possession that pertains to the claim. As
explained below, the Board finds that all relevant evidence
has been obtained with regard to the veteran's claim and that
the requirements of the VCAA have been satisfied.
As it pertains to the duties to notify under the VCAA, by way
of the September 2002 rating decision, the January 2003
Statement of the Case, and the July 2003 Supplemental
Statement of the Case, the RO advised the veteran and his
representative of the basic laws and regulations governing
the claim and the bases for the denial of the claim.
Moreover, the Board finds that they have been given notice of
the information and evidence needed to substantiate the
claim, and, as evidenced by various letters soliciting
information and/or evidence (see, e.g., RO letter of October
2001) and have been afforded opportunities to submit such
information and evidence.
A VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. Additionally, a VCAA notice letter consistent with
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim.
In the present case, the veteran submitted his claim for
service connection for a heart condition in August 2000. In
an October 2001 letter, pursuant to the VCAA, the RO advised
the appellant of the types of evidence that needed to send to
VA in order to substantiate the claim, as well as the types
of evidence VA would assist in obtaining. In addition, the
veteran was informed of the responsibility to identify, or to
submit evidence directly to VA. Furthermore, the RO
specifically requested that the veteran provide it with or
identify any other additional evidence that could help
substantiate the claim, including complete authorizations to
obtain VA and private medical evidence. The September 2002
RO decision advised the veteran of the evidence it had
received in connection with the claim.
For the above reasons, the Board finds that the RO's notice
in October 2001 substantially complied with the specificity
requirements of Quartuccio v. Principi, 16 Vet. App. 183
(2002) (identifying evidence to substantiate the claim and
the relative duties of VA and the claimant to obtain
evidence); Charles v. Principi, 16 Vet. App. 370 (2002)
(identifying the document that satisfies VCAA notice); and,
38 U.S.C.A. § 5103(a).
The Board also finds that all necessary development has been
accomplished. Identified VA outpatient and hospital records
were associated with the claims file. Additionally, the RO
made attempts to obtain private treatment records. The
veteran was advised by the RO as to which private records it
was able to obtain and which records were unavailable.
Moreover, the veteran was afforded a VA examination in May
2003. In September 2003, the veteran indicated that he had
stated his case completely. Significantly, neither the
veteran nor his representative has identified, and the record
does not otherwise indicate, any additional existing evidence
that is necessary for a fair adjudication of the claim that
has not been obtained. Hence, no further notice or
assistance to the veteran is required to fulfill VA's duty to
assist him in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Accordingly, appellate review may proceed without prejudice
to the veteran. See Bernard v. Brown, 4 Vet. App. 384
(1993).
II. Background
The veteran's service medical records are associated with his
claims file. An April 1963 induction examination did not
reveal any complaints or pertinent diagnoses of a heart
condition. In July 1964, the veteran was hospitalized with
complaints of malaise, sore throat, non-productive cough,
stiff neck and headaches. He denied any cardiopulmonary
symptoms, except for shortness of breath on exertions,
questionably due to inactivity, and a vague nocturnal dypsnea
on occasion. Upon examination, a soft grade systolic murmur
was heard. There was no cardiomegaly. Other heart sounds
were within normal limits. EKG testing was initially
abnormal. Viral myocarditis was suspected. The veteran was
also diagnosed with an upper respiratory infection, cause
unknown.
A July 1964 note indicated a diagnosis of questionable
resolving pericarditis.
During a January 1965 discharge examination, the veteran
reported a history of shortness of breath and pain or
pressure in the chest. The physician's summary indicated
that the veteran had occasional palpitation of the heart,
occasional discomfort in the chest, and occasional feeling of
shortness of breath with exercise.
An April 1965 chest x-ray conducted in conjunction with an
enlistment examination for the veteran's second period of
active duty service was normal. There were no defects or
diagnoses listed following a physical examination.
In June and July 1966, the veteran was treated for upper
respiratory infections. In November 1966, he was diagnosed
with a non-specific viral illness.
Chest x-ray in January and April 1968 were interpreted as
normal.
During an April 2, 1968 discharge examination, the veteran
again reported a history of shortness of breath and pain or
pressure in the chest. The examiner noted that the veteran's
multiple abnormalities were usually associated with past
respiratory infections. The present medical history was
negative with the exception of current treatment for
prostatitis.
He was treated at the Kenner Army Hospital in April 1968, for
a viral infection. A heart examination noted questionable
3rd and 4th heart sounds. Otherwise, the heart examination
was within normal limits. The impression was prostatitis but
without organic heart disease.
Post-service, in May 1975, the veteran was treated for
recurrent pericarditis that was presumably viral. A May 1975
chest x-ray indicated that the heart was somewhat enlarged,
but still within normal limits. There was no active
pulmonary infiltrate or pleural fluid.
In August 1975, the veteran was again treated for recurrent
pericarditis.
An October 1982 VA hospital summary indicates that the
veteran was seen with complaints of aching chest pain. An
electrocardiogram showed slight ST elevation and the veteran
was admitted to rule out pericarditis. An echocardiogram
revealed no evidence of pericardial effusion and cardiac
motion was normal. A physician in the Cardiology department
was unsure as to the etiology of the veteran's pain. There
was no evidence of pericarditis and the veteran was
discharged.
An October 1983 treatment note from C. G., M.D., indicated a
history of persistent chest pain since 1974. The pain was
described as chest wall tightness, that was not positional,
related to meals, or exertional. Following a physical
examination, the examiner noted that the veteran's resolving
ST segment elevation was suggestive of atypical angina.
However, the persistent chest wall tightness suggested a
constochondritis or other musculoskeletal disorder.
VA treatment records reflect that the veteran was seen in
April 1990 with atypical chest pain.
In May 2000, the veteran underwent a coronary artery bypass.
His admitting diagnoses were class IV accelerating angina,
three vessel coronary artery disease, hypertension, history
of peptic ulcer disease in 1970, and history of pericarditis
in 1970.
The veteran was afforded a VA examination in February 2003.
Therein, he complained of chest pain on movement of his trunk
and shoulders and shortness of breath upon exertion. He
reported that his pain was sharp and sometimes lasted all day
long. He denied any palpitation, dizziness or syncopal
spells. Upon physical examination, the veteran had
tenderness on palpation of his costochondral junction and rib
cage. The heart had a regular rate and rhythm. There were
no audible murmurs. No audible pericardial knock or rub was
present. An EKG showed no evidence of acute ischemia. A 2-D
echocardiogram of the heart showed that the aortic route was
normal. The left atrium was mildly dilated. The left
ventricular wall was normal in thickness. The left and right
ventricle and right atrium were normal in size. A CT scan
showed no evidence of pericardial thickening, effusion or
masses.
The diagnosis was arteriosclerotic heart disease, secondary
to systemic narrowing of the vessels in the heart. Such
disease process was related to underlying risk factors of
hypertension, hyperlipidemia, male sex, sedentary lifestyle
and history of tobacco use. The examiner opined that the
veteran's coronary artery disease and bypass operation were
not related to the symptoms of pericarditis or myocarditis in
service. The examiner noted that a review of the veteran's
EKGs in service suggested nonspecific changes that could or
may not be related to pericarditis/myocarditis. He noted
that the veteran had no current pericarditis and opined that
suspected pericarditis in service probably resolved, as the
veteran had no evidence of chronic thickened pericardium.
Finally, he noted that the veteran's complaints of chest pain
were atypical for cardiac etiology as they could increase or
decrease in severity by lifting up the veteran's arms.
A June 2003 VA treatment note indicated that the veteran had
atypical chest pain that appeared to be coming from the
musculoskeletal region.
III. Analysis
Under the applicable criteria, service connection may be
granted for disability resulting from disease or injury
incurred or aggravated in service. 38 U.S.C.A. § 1110 (West
2002). Such a determination requires a finding of a current
disability that is related to an injury or disease incurred
in service. Watson v. Brown, 4 Vet. App. 309 (1993);
Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service
connection may be established under the provisions of 38
C.F.R. § 3.303(b) when the evidence, regardless of its date,
shows that a veteran had a chronic condition in service or
during the applicable presumptive period. Service connection
also may be granted for any disease diagnosed after discharge
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Certain chronic diseases including, as here pertinent,
arteriosclerosis, may be presumed to have been incurred in
service if they become manifest to a compensable degree
within one year of discharge from active service. 38
U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Upon review of the evidence of record, the Board finds that
the criteria for service connection for a heart condition are
not met. In this respect, the evidence shows that the
veteran has a current heart condition. Specifically, the
record shows current treatment for coronary artery disease,
status post coronary artery bypass surgery performed in May
2000. The veteran's service medical records show treatment
for suspected viral myocarditis and questionable
pericarditis. Available medical records do not show
treatment for a heart condition within the year following
discharge from service. Rather, the first record of
treatment post-service was in the mid-1970's, at which time
the veteran was treated for recurrent pericarditis. However,
the competent medical evidence of record indicates that the
veteran's current heart condition is not likely related to
incidents in service.
In this respect, the only medical evidence in which an
opinion is offered as to the etiology of the condition,
namely the May 2003 VA examiner's opinion, weighs against the
claim. The VA examiner opined that current arteriosclerotic
heart disease was likely due to factors other than symptoms
of pericarditis in service. Additionally, he opined that
pericarditis was likely acute and transitory as there was
current evidence of chronic thickened pericardium. The Board
affords such opinion probative weight as the examination
included a thorough review of the veteran's claims file, a
physical examination and included detailed reasoning as to
opinion expressed. The Board finds that this evidence
constitutes the most probative medical evidence of record on
the question of the relationship between the veteran's
current disability and service. See Hayes v. Brown, 5 Vet.
App. 60, 69-70 (1993) ("It is the responsibility of the BVA
to assess the credibility and weight to be given the
evidence") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-
93 (1992)).
The Board has considered the veteran's assertions advanced in
connection with the current claim. While the Board does not
question the sincerity of his beliefs that his current heart
disability is related to service, as a layperson without the
appropriate medical training and expertise, the veteran
simply is not competent to provide a probative (i.e.,
persuasive) opinion on a medical matter, such as whether
there exists a medical relationship, if any, between such
disability and service. See, e.g. Bostain v. West, 11 Vet.
App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). Consequently, the veteran's own assertions
as to the etiology of his heart condition condition, have no
probative value.
For all the foregoing reasons, the claim for service
connection for a heart disability must be denied. In the
absence of competent medical evidence suggesting a nexus
between a current heart disability and active military
service, the benefit-of-the-doubt doctrine is not applicable.
See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Service connection for a heart disability, diagnosed as
coronary artery disease, is denied.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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